HKSAR v. Y

[2019] HKCA 456 in the high court of the hong kong special administrative region court of appeal

BETWEEN

HKSAR Respondent and Y Applicant Before: Hon Macrae VP and M Poon J in Court Date of Judgment: 12 April 2019

J U D G M E N T Hon M Poon J (giving the judgment of the court): The applicant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drug involved was 10,490 grammes of a powder containing 4,045 grammes of ketamine. He was sentenced by Deputy High Court Judge LugarMawson (“the judge”) to 14 years and 8 months’ imprisonment. On 15 May 2018, the applicant filed a notice of appeal against sentence out of time. The facts The applicant was a passenger on board a vehicle driven by a crossborder driver entering Hong Kong at the Lok Ma Chau border at 8:28pm on 30 September 2015. A search revealed two bags containing dangerous drugs in the rear storage compartment of the vehicle. The applicant was arrested but remained silent under caution. Upon analysis, the drugs were found to be as specified in the particulars of the charge with an estimated retail value of HK$1,332,230.00. The judge’s sentencing approach In sentencing, the judge considered the applicant’s background and the mitigation advanced on his behalf. He took a starting point of 20 ½ years’ imprisonment, which he enhanced by 18 months to reflect the cross border element of trafficking. He gave him a full onethird discount for his plea of guilty and sentenced him to 14 years and 8 months’ imprisonment. Application for leave to appeal

out of time and the ground of appeal against sentence By May 2018 when the applicant filed a notice of appeal against sentence, he was some 7 months out of time. The applicant explained that his assistance to the police had to be ascertained and confirmed. The sole ground advanced by Mr Kevin Chan, on behalf of the applicant, was that the applicant had given useful information to the police resulting in the arrest of three persons, two of whom were charged and convicted of possession of an offensive weapon and trafficking in a dangerous drug, and of possession of a dangerous drug respectively. Mr Chan argued that had such information been made available to the judge, the applicant would have been given a discount greater than onethird. The submissions of the respondent The respondent did not oppose the application for extension of time. Ms Audrey Parwani, in her submissions on behalf of the respondent, referred us to Z v HKSAR (2007) 10 HKCFAR 183, contending that a court should consider the nature and extent of prearrest assistance by a paid informer with great care. It was submitted that as the applicant had been paid by the police for the intelligence provided well before he was arrested for the present offence, and there being no apparent threats to the applicant’s safety to warrant protective custody, he should not be entitled to any further discount than the amount he had

received. Ms Parwani further submitted that the starting point of 20 ½ years’ imprisonment and the enhancement of 18 months to reflect the cross border element were already on the lenient side, as trafficking in over 3,000 grammes of ketamine would warrant a starting point of 20 years upwards: HKSAR v Sin Chung Kin [2013] 1 HKLRD 627; and an enhancement of 2 years: HKSAR v Chan Ka Yiu, CACC 147/2016 (unreported). Discussion In Z v HKSAR, it was held that credit for prearrest assistance could be given, although the circumstances of such assistance should be closely examined by a court before deciding whether and if so, the extent to which it should be taken into account: “20. . . . First, the defendant may have assisted the authorities out of good motives. He may have had a genuine wish to assist the authorities. His assistance in these circumstances would usually deserve full recognition in mitigation of sentence. Secondly, the defendant may have received payment or other consideration for his assistance. It has to be recognised that payments to police informers are a fact of life and the use of informers is necessary in society’s fight against crime. Although assistance for which payment or other consideration was given may be recognised as a mitigating factor, the court should carefully consider all the circumstances in deciding whether the assistance in the case in question

deserves any reduction and if so, the amount of reduction. The more substantial the payment or consideration, the less sympathetic should the court be in this regard. Thirdly, the courts should be wary of the situation in which a defendant who is engaging or is intending to engage in criminal activities gives assistance to the authorities in order to build up credit for himself to be used later if apprehended for the purpose of minimising the consequences of his crimes. Although there is no bar against the recognition of assistance given in such a situation, the courts should proceed with considerable circumspection in deciding whether, taking into account all the circumstances, the assistance merits any recognition and if so the degree of any discount. It is undesirable for the courts to take an approach which has the effect of fostering potential defendants trying to build up goodwill in this way. . . .” In assessing the value of the prearrest assistance, the court will take into account the nature and the effect of the assistance. Mere tipsoffs by informers unlikely to entail the giving of statements or evidence in court were not mentioned as any special category within the 33.3% to 40% range in HKSAR v Lo Sze Tung Stephanie, CACC 190/2017 (unreported). We are of the view, given the variety and circumstances involved in tipoffs, that each case must be decided on its own

facts. The intelligence provided by the applicant was purely in the form of tipoffs without providing any statements in November 2014, which subsequently led to two convictions. One conviction was in respect of one count of trafficking in a dangerous drug and one count of possession of an offensive weapon, which on pleas of guilty in the Court of First Instance, resulted in a total of 5 years and 6 months’ imprisonment in June 2016. The other involved one count of possession of a dangerous drug, resulting in a fine of HK$4,000.00 in January 2015 in the Magistracy. For the information provided resulting in the offensive weapons seized, the applicant was paid HK$1,500.00; while for the dangerous drugs seized, he was paid HK$547.43. The applicant has seven previous convictions, none similar to the present, the last one being in 2008, before he became a police informer in 2014. However, one should not lose sight of the fact that it was some nine months after the applicant received payment that he was arrested for the present offence, the nature of which was similar to the intelligence he provided. Although the applicant might not have given intelligence to the police in anticipation of building up credit for himself, it was obvious that he was performing the role of a paid informer but at the same time participating in the drug trade. The court will also consider the seriousness of

the crimes disclosed, in particular whether they were of a sufficiently serious nature warranting lengthy imprisonment. Even if they were, the court will look at whether the informer has been sufficiently compensated. The Court of Appeal in HKSAR v X (unreported, 5 July 2007) stressed that the amount received by an informer must be viewed in the context of the information supplied. In that case the intelligence was provided after X had been arrested, which led to one conviction of bookmaking with a short term of imprisonment. X was given a reward of HK$3,000.00 in accordance with a police guideline formula regarded as adequate by the police. By contrast, the prearrest assistance provided by Z, supra, prevented serious crimes of robberies with the use of firearms from being committed. One of the culprits was sentenced to 12 years’ imprisonment. Although Z refused to give evidence, he had to be put in protective custody in prison as a result of his assistance. He was entitled to a 40% discount. In HKSAR v B [2007] 5 HKC 178, B’s prearrest assistance resulted in terms of imprisonment ranging from 3 years and 4 months to 16 years. Although the Court of Appeal remarked that “one would gather from those facts the substantial amount of drugs involved”, further discount was refused on the basis that he had been paid a substantial amount, calculated by reference to the amount of drugs

involved. In the present case, with regard to the sentence received by the arrestees in the other two cases, we did not think that the crimes disclosed by the applicant were comparable in their seriousness with those in Z’s case. In X, supra, Tang VP (as he then was) remarked: “9. Here, the information related to bookmaking on soccer matches carried out in a bar, and the amount was determined in accordance with a guideline formula. In response to our inquiry we were told that the police regard the payments under the guideline formula to be adequate. That being the case, we see no reason why any reduction of sentence should be given as a further reward for such information.” We made similar enquiries with the respondent. We were given to understand that there existed a standard mechanism as to how the rates paid to an informer were to be calculated in relation to the seizure and conviction of various drugs, subject to annual review within the police force. Rates to be paid for the seizure and conviction of weapons information are decided by a senior rank officer on a discretionary basis. Although Mr Chan stressed that these payments were not substantial, they were not in our view in any way insufficient. We consider that the circumstances of this case do not warrant any further discount. In any event, we agree with Ms Parwani that had the judge taken an enhancement in line with

Chan Ka Yiu, supra, the sentence would have already entailed a discount of more than 33.3%. We grant leave to appeal out of time but refuse the application for leave to appeal. The appeal against sentence is accordingly dismissed. Andrew Macrae Vice President Maggie Poon Judge of the Court of First Instance Ms Audrey Parwani, SPP of the Department of Justice, for the respondent Mr Kevin Chan, Counsel instructed by Legal Aid Department, for the applicant